Intellectual Property Law Commons^™

The Ip Of Ipas: A Look Into Trademark Infringement In The Craft Beer Industry, Shivani Patel

Georgia Journal of Law & Technology

Alcohol isn't just a mind-altering drink: It has been a prime mover of human culture from the beginning, fueling the development of arts, language, and religion."' Alcohol production and consumption can be traced to civilizations dating back thousands of years all around the world, and it has become so essential to our society that experts have gone on to joke that humans should be called "Homo imbibens." Within the current alcohol industry, two essential qualities that are becoming more common are creativity and variety.

Alcohol has become a defining aspect of human culture and our sense of society. It has …

Who Owns The Law? Why We Must Restore Public Ownership Of Legal Publishing, Leslie A. Street, David R. Hansen

Georgia Journal of Law & Technology

Each state has its own method for officially publishing the law. This article looks at the history of legal publishing for the fifty states before looking at how legal publishing even in moving to electronic publishing may not ensure public access to the law. The article addresses barriers to free access to the law in electronic publishing including copyright, contract law, and potentially, the Computer Fraud and Abuse Act. The article concludes with prescriptions for how different actors, including state governments, publishers, libraries, and others can ensure robust public access to the law moving forward.

Table Of Contents

Georgia Journal of Law & Technology

No abstract provided.

Rent For Rent: Making A Living By Licensing Your Music, Jessica Muñiz-Collado

CAHSS Faculty Presentations, Proceedings, Lectures, and Symposia

Wouldn’t it be great if a composer, music producer, or songwriter could pay their rent by “renting” out their music? This demonstration will simplify the music licensing process, focus on researching music libraries, preparing songs for submissions and much more.

Copyright, Fair Use, And Creative Commons: An Active-Learning Exercise For Studio Art Students, Arthur J. Boston

Faculty & Staff Research and Creative Activity

This article describes an active-learning exercise intended to help teach copyright, fair use, and Creative Commons licenses. In the exercise students use a worksheet to draw original pictures, create derivative pictures on tracing paper, select Creative Commons licenses, and explore commercial usage, fair use, and copyright infringement. Librarian-instructors may find the completed worksheets to be useful aids to supplement copyright lectures; student perspectives will be integral because they are generating the examples used in discussion. Although a scholarly communication librarian developed this exercise to help introduce some basic copyright information to an undergraduate studio art and design class, the exercise …

Disguised Patent Policymaking, Saurabh Vishnubhakat

Washington and Lee Law Review

Patent Office power has grown immensely in this decade, and the agency is wielding its power in predictably troubling ways. Like other agencies, it injects politics into its decisions while relying on technocratic justifications. It also reads grants of authority expansively to aggrandize its power, especially to the detriment of judicial checks on agency action. However, this story of Patent Office ascendancy differs from that of other agencies in two important respects. One is that the U.S. patent system still remains primarily a means for allocating property rights, not a comprehensive regime of industrial regulation. Thus, the Patent Office cannot …

Demystifying Patent Holdup, Thomas F. Cotter, Erik Hovenkamp, Norman Siebrasse

Washington and Lee Law Review

Patent holdup can arise when circumstances enable a patent owner to extract a larger royalty ex post than it could have obtained in an arms length transaction ex ante. While the concept of patent holdup is familiar to scholars and practitioners—particularly in the context of standard-essential patent (SEP) disputes—the economic details are frequently misunderstood. For example, the popular assumption that switching costs (those required to switch from the infringing technology to an alternative) necessarily contribute to holdup is false in general, and will tend to overstate the potential for extracting excessive royalties. On the other hand, some commentaries mistakenly presume …

Identifying And Implementing Relevant Research Data Management Services For The Library At The University Of Dodoma, Tanzania, Gilbert Exaud Mushi, Heila Pienaar, Martie Van Deventer

Copyright, Fair Use, Scholarly Communication, etc.

Research Data Management (RDM) services are increasingly becoming a subject of interest for academic and research libraries globally – this is also the case in developing countries. The interest is motivated by a need to support research activities through data sharing and collaboration both locally and internationally. Many institutions, especially in the developed countries, have implemented RDM services to accelerate research and innovation through e-Research but extensive RDM is not so common in developing countries. In reality many African universities and research institutions are yet to implement the most basic of data management services. We believe that the absence of …

Not The African Copyright Pirate Is Perverse, But The Situation In Which (S)He Lives—Textbooks For Education, Extraterritorial Human Rights Obligations, And Constitutionalization "From Below" In Ip Law, Klaus D. Beiter

Buffalo Human Rights Law Review

Printed textbooks remain crucial for education, particularly in developing countries. However, in many of these countries, textbooks are unavailable, too expensive, or not accessible in learners' native tongues. Digital content, for many reasons, does not prove a wondrous solution. Cheaply (translating and) reproducing textbooks would be a strategy. However, reprography is highly regulated under copyright law. Copyright also adds to the cost of textbooks. The availability, accessibility, and acceptability of learning materials constitute essential elements of the right to education under international human rights law. Intellectual property (IP) law has so far refrained from endorsing the concept of extraterritorial state …

Bridging Race + Ip: The Challenges And Potential Of Utilizing Transdisciplinary Methods To Undo The Unbearable Whiteness Of Intellectual Property, Deidre Keller

Faculty Books and Book Contributions

This chapter is part of Approaches and Methodologies in Intellectual Property Research edited by Irene Calboli and Maria Lilla.

The Complicated Relationship Of Patent Examination And Invalidation, Gregory Reilly

All Faculty Scholarship

The conventional view is that the Patent Office examines patent applications before issuance to assure compliance with the statutory criteria of patentability. Ex post invalidation in district court litigation or Patent Office cancellation proceedings then reviews the Patent Office’s work to correct errors that result from the Patent Office’s shortcomings, bias, or “rational ignorance” that limits resources spent on examination because of the irrelevance of most patents. Scholars, the Federal Circuit, and the Supreme Court have all endorsed this conventional view. However, it is wrong—or at least overly simplistic. The American patent system is only partially a system of ex …

A Siri-Ous Societal Issue: Should Autonomous Artificial Intelligence Receive Patent Or Copyright Protection?, Samuel Scholz

Cybaris®

No abstract provided.

That's Fuct: Why The Political Question Doctrine Should Have Barred The Supreme Court From Deciding Iancu V. Brunetti, Jennifer Madaras

Cybaris®

No abstract provided.

The Importance Of Communication To Possession In Ip, Timothy R. Holbrook

Sturm College of Law: Faculty Scholarship

In this invited online symposium piece, Professor Holbrook engages with the recent article by Dotan Oliar & James Y. Stern, Right on Time: First Possession in Property and Intellectual Property, 99 B.U. L. Rev. 395 (2019). This essay explores the important role that communication to interested third parties plays in possession for allocating property rights. The essay focuses on two aspects of patent law that demonstrate the importance of such communication: patent priority and utility. Under the first-to-invent regime, the first to invent could lose the right to the patent - and a second-to-invent could get the patent - if …

Good Initiative, Bad Judgement: The Unintended Consequences Of Title Ix's Proportionality Standard On Ncaa Men's Gymnastics And The Transgender Athlete, Jeffrey Shearer

Student Scholarship

Title IX fails to provide the tools or guidelines necessary to equalize opportunities for all student athletes in the collegiate setting despite the government’s continuous effort to explain the law. This failure is because judicial precedent has largely developed around the binary proportionality test of compliance. Title IX was originally intended to equalize educational opportunities for male and female students in order to remedy past discrimination in our society. However, the application of Title IX has frequently created fewer opportunities in athletics due to the unintended relationship between the proportionality standard and the social phenomenon that is the commercialization of …

Praxair And The Ptab's Shadow Over Biotechnology Patents, Nora J. Mcguffey

Student Scholarship

The biotechnology industry is one of the fastest growing fields in research and development. This may be attributed to the decision in Diamond v. Chakrabarty, where the Supreme Court held that a biotechnology invention was patent-eligible subject matter under 35 U.S.C. § 101. However, recent Supreme Court rulings have left the boundaries of § 101 uncertain, unworkable, and difficult for biotechnology industries to gain patent protections for their inventions. Before Congress enacted the AIA in 2011, the courts were the biggest influence on shaping the doctrine of patent eligible subject matter under § 101. But now with the new AIA …

Privative Copyright, Shyamkrishna Balganesh

Vanderbilt Law Review

“Privative” copyright claims are infringement actions brought by authors for the unauthorized public dissemination of works that are private, unpublished, and revelatory of the author’s personal identity. Driven by considerations of authorial autonomy, dignity, and personality rather than monetary value, these claims are almost as old as Anglo-American copyright law itself. Yet modern thinking has attempted to undermine their place within copyright law and sought to move them into the domain of privacy law. This Article challenges the dominant view and argues that privative copyright claims form a legitimate part of the copyright landscape. It shows how privative copyright claims …

Fame: Ownership Implications Of Intellectual Property And Agency Law, Max Stul Oppenheimer

Fordham Intellectual Property, Media and Entertainment Law Journal

In the pre-internet era, it was difficult to reach a wide audience without the help of a professional organization, so as a practical matter control typically rested with distributors rather than with talent. Now that direct public distribution is easy and inexpensive, distributors’ practical control has greatly diminished, and it is therefore important to consider the legal principles that govern the control of the use of “fame.” This Article defines fame as a bundle of intellectual property rights and analyzes the ownership of those rights under intellectual property and agency theories.

Down The Rabbit Hole: Applying A Right To Be Forgotten To Personal Images Uploaded On Social Networks, Eugenia Georgiades

Fordham Intellectual Property, Media and Entertainment Law Journal

The right to be forgotten has been the subject of extensive scrutiny in the broad context of data protection. However, little consideration has been given to the misuse of personal images that are uploaded on social networks. Given the prevalent use of online and digital spaces, social networks process and use various forms of data, including personal images that are uploaded by individuals. The potential for misuse of images is particularly acute when users upload images of third parties. In light of the European Union’s enshrinement of the “right to be forgotten” amid provisions of the General Data Protection Regulation …

Bounty Hunters For Algorithmic Cartels: An Old Solution For A New Problem, Aleksandra Lamontanaro

Fordham Intellectual Property, Media and Entertainment Law Journal

In light of the reality that pricing algorithms allow commercial actors to perform all phases of their price-fixing conspiracies without leaving behind trails of traditional incriminating evidence, the scarcity of algorithmic cartels prosecutions is hardly surprising. Given well-documented evidence that the authorities struggle in their efforts to detect even conventional price-fixing cartels, it is imperative to come up with new tools for detecting algorithmic cartels, which have unprecedented potential to harm consumers if left ignored. This Note investigates algorithmic capabilities to collude, as well as legal and technical challenges that governmental authorities face in confronting such collusion. This Note then …

Some First Amendment Implications Of The Trademark Registration Decisions, Marc Rohr

Marquette Intellectual Property Law Review

No abstract provided.

If The Law Can Allow Takebacks, Shouldn't It Also Allow Hackbacks?, Adam Rodrigues

Marquette Intellectual Property Law Review

None.

Artificial Intelligence, Copyright, And Copyright Infringement, Zach Naqvi

Marquette Intellectual Property Law Review

None.

Whiskey Sour: An Ip Evaluation Of Nathan Green's Contribution To Jack Daniel's Whiskey And How That Contribution Led To An Inequitable Distribution Of Generational Wealth, Emmanuel Onochie

Marquette Intellectual Property Law Review

None.

Fiddling With Federal Circuit Precedent: The Commercial And Qualitative Impact Of Recent Supreme Court Reversals On The U.S. Patent System, Christopher J. Hamersky

Fordham Intellectual Property, Media and Entertainment Law Journal

Prior to 2006, the Court of Appeals for the Federal Circuit enjoyed a fairly laissez-faire relation with the Supreme Court of the United States, enabling it to develop a patent law jurisprudence that patent practitioners could confidently rely on given that it had remained relatively stable for several decades. However, in 2006, the Supreme Court reviewed eBay v. MercExchange and subsequently began a string of frequent Federal Circuit reversals that have caused significant change to the U.S. patent system. Whereas the Supreme Court rarely took up patent appeals in the Federal Circuit’s early history, it now routinely reviews patent questions …

Patent Law’S Purposeful Ambiguity, Craig Allen Nard

Faculty Publications

The ambiguity of language is an unremarkable, yet persistent force within our legal system. In the context of patent law, ambiguity presents a particularly acute dilemma; namely, while describing technological innovations is a salient feature of the patent system, affecting the validity and scope of one’s property right, the blunt nature of language makes this task particularly difficult. This paper argues to address this vexing fixture, patent doctrine purposely embraces ambiguity as a linguistic accommodation that provides measured flexibility for actors to claim and describe their innovations. It should not be surprising, therefore, that some of patent law’s most venerable …

The New Madison Approach To Antitrust Law And Intellectual Property Law, Anita Alanko

Catholic University Journal of Law and Technology

The New Madison Approach has recently been introduced by the Department of Justice Antitrust Division in an effort to address a weakening of patent rights in recent years. The approach has four premises: patent hold-up is not an antitrust problem, standard setting organizations should better protect against patent hold-out to ensure maximum incentives to innovate, patent holder injunction rights should be protected and not limited, and a unilateral and unconditional refusal to license a valid patent should be per se legal. After providing an introduction to the relevant law and terms of art, support and criticism of the New Madison …

The International Intellectual Property Commercialization Council’S 3rd Annual U.S. Conference: The State Of Innovation In The Union, Jeffery P. Langer, Neel Sukhatme, Paul R. Zielinski, G. Nagesh Rao, Pj Bellomo, Matthew Byers, Meghan Gaffney Buck, Everardo Ruiz, Andrei Iancu, Patrick Kilbride, Carl J. Schramm, Colman Ragan, Ami Patel Shah, Randall R. Rader

Catholic University Journal of Law and Technology

The International Intellectual Property Commercialization Council (“IIPCC”) presented its third annual policy conference at the United States Capitol on May 6, 2019. The conference’s theme explored the question of “what is the state of innovation in the United States?” Panelists included The Honorable Andrei Iancu – Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office; Dr. Carl J. Schramm – University Professor, Syracuse University and Former President of the Ewing Marion Kauffman Foundation; Mr. Patrick Kilbride – Senior Vice President of the Global Innovation Policy Center (“GIPC”) at the U.S. Chamber of …

An Inside History Of The Burger Court's Patent Eligibility Jurisprudence, Christopher B. Seaman, Sheena X. Wang

Scholarly Articles

Patent eligibility is one of the most important and controversial issues in intellectual property law. Although the relevant constitutional and statutory text is extremely broad, the Supreme Court has significantly narrowed the scope of patentable eligibility by creating exceptions for inventions directed to abstract ideas, laws of nature, and natural phenomenon. In particular, the Supreme Court’s decisions on this issue over the past decade have created considerable uncertainty regarding the patentability of important innovations. As a result, numerous stakeholders have called for reform of the current rules regarding patent eligibility, and members of Congress have introduced legislation to amend the …

Abandoning Copyright, Dave Fagundes, Aaron K. Perzanowski

Faculty Publications

For nearly two hundred years, U.S. copyright law has assumed that owners may voluntarily abandon their rights in a work. But scholars have largely ignored copyright abandonment, and the case law is fragmented and inconsistent. As a result, abandonment remains poorly theorized, owners can avail themselves of no reliable mechanism to abandon their works, and the practice remains rare. This Article seeks to bring copyright abandonment out of the shadows, showing that it is a doctrine rich in conceptual, normative, and practical significance. Unlike abandonment of real and chattel property, which imposes significant public costs in exchange for discrete private …